The High Court (O’Farrell J) handed down judgment last week in Good Law Project & EveryDoctor v Secretary of State for Health and Social Care [2022] EWHC 46 (TCC), a claim for judicial review concerning direct awards pursuant to Regulation 32(2)(c) of the Public Contracts Regulations 2015(“PCR 2015”) of sizeable contracts for the supply of PPE during the COVID-19 pandemic.
The Claimants challenged the award of nine contracts to three suppliers on the grounds that:
- the awards contravened the principles of equal treatment and transparency set out in Regulation 18 of the PCR 2015, in particular in that the Defendant operated a “High Priority Lane” whereby suppliers referred by Ministers, MPs or other senior officials were afforded more favourable treatment than other suppliers;
- the Defendant failed to give sufficient reasons for his decisions to award the contacts so as to permit the Court to assess their lawfulness, and;
- in respect of the awards made to two suppliers, the awards were irrational as they were made without appropriate financial or technical verification of the relevant suppliers.
The Court upheld the Claimant’s challenge in part, holding that the award of contracts through a “High Priority Lane” breached the principles of equal treatment and transparency. O’Farrell J rejected an argument by the Defendant that those principles were automatically disapplied in the context of direct awards pursuant to Regulation 32(2)(c). In circumstances where more than one supplier was capable of providing the works or services in question, those principles continue to apply. As the Judge explained at ¶341:
“Dispensing with a competition does not justify arbitrary or unfair selection criteria where more than one economic operator could satisfy demand.”
The use of a High Priority Lane breached the principles of equal treatment and transparency because the criteria used to allocate offers to the High Priority Lane “did not treat comparable offers in the same way” as “the mere fact that an offer was sent to the priority email address from a Senior Referrer [i.e. Ministers, MPs and senior officers] did not justify preferential treatment over a similar offer made through the Portal” (¶398). O’Farrell J declined to grant relief in respect of the Defendant’s breaches, however, on the basis that it was highly likely that the Defendant would have awarded the relevant contracts had it acted lawfully (¶512, 518).
O’Farrell J rejected the Claimants’ remaining grounds of claim. The Judge held that the Defendant complied with its duty to give reasons through his pre-action correspondence. The decisions to award the relevant contracts, including contracts for PPE which failed to match the requirements of the NHS (see ¶485), were held to be rational.
The claim also gave rise to a number of contested ancillary applications heard during the substantive hearing, including (i) an application to release all information referred to within the Claimants’ skeleton argument from a confidentiality ring and (ii) an application by the Claimants to cross-examine two of the Defendant’s witnesses.
O’Farrell J dismissed both applications.
- In relation to the confidentiality application, O’Farrell J held that the information in issue (which included the amount of public money spent on items of PPE which were not fit for purpose) was not relevant to the grounds of claim, and accordingly was inadmissible as evidence at the hearing. On that basis, the Judge held, the principle of open justice did not arise (¶262-266). O’Farrell J held further that, in any event, the principle of open justice would not have required the release of the specific pricing information (or the other categories of information in issue) from the confidentiality ring. The pricing information, the Judge held, remained commercially sensitive owing to the ongoing and unpredictable nature of the pandemic.
- In relation to the application to cross-examine, O’Farrell J held that the Claimant was able to make its case as to deficiencies and gaps in the Defendant’s evidence through submissions. Cross-examination, which is an exceptional order in judicial review, was held to be unnecessary and disproportionate.
11KBW’s Jason Coppel KC, Patrick Halliday and Zac Sammour acted for the Claimants.
